Racist laws are valid, court told

By Margo Kingston, Sydney Morning Herald
7 February 1998

The Australian people had unwittingly empowered the Federal
Government to pass racially discriminatory laws against
indigenous Australians at the 1967 referendum, despite their
contrary expectations, the Government told the High Court
yesterday. Dr Gavan Griffith, QC, for the Government, was
defending the validity of the 1997 Hindmarsh Island Bridge law,
enacted under the Constitution's power to make special laws for
people of any race. Dr Griffith acknowledged that never before
had a Federal Government used the "races power" to pass laws
detrimental to a race, and that since the 1967 referendum only
laws meant to benefit Aborigines had been passed until Hindmarsh.

Before 1967, Aborigines had been excluded from the races
power, leaving all power over indigenous Australians to the
States. But voters overwhelmingly supported the 1967 bipartisan
referendum proposal to grant the Federal Government power to
ensure Aboriginal advancement.

"There was an expectation that it [the new power] would be
used beneficially," Dr Griffith said.

However, despite the expectations of the political parties
and the people, the referendum gave the Government the new power
to discriminate against Aborigines, and the High Court had no
"supervisory role" to strike down extremist racist laws, he said.

Dr Griffith said neither the referendum nor the fact that
Australia signed an international treaty banning racial
discrimination in 1966 altered the fact that the races power was
"absolutely rooted in prejudice". Several members of the court
objected, with Justice Michael Kirby saying he could not accept
that the Constitution was still "stamped with the prejudices" of
1901 (when the races power was intended to allow discrimination
against Kanaka slaves and Chinese).

The Chief Justice, Sir Gerard Brennan, said that on one view
the power to pass racially discriminatory laws directed to one
race could only be "exercised reasonably, or having regard to
contemporary values".

Asked by Sir Gerard if the court could stop a law providing
for the removal of the hand of a thief of a particular race, Dr
Griffith said only Parliament could decide if a race-based law
was necessary.

The Aboriginal appellants argue that the Hindmarsh law is
detrimental to Aborigines because it removes their right to use
heritage protection laws so that a bridge to benefit a South
Australian developer can proceed. They have argued that the
people's overwhelming vote to grant the Federal Government power
to legislate for Aborigines was intended to allow only laws
benefiting indigenous Australians. The High Court reserved its
decision, which is widely expected to help determine whether the
Prime Minister's Wik bill is constitutional.